Petitioner, Erik Killingsworth ("Killingsworth" or
"Petitioner"), has filed a petition for writ of habeas corpus
("Petition") pursuant to 28 U.S.C. § 2254, on the grounds that
(1) he was not fully advised of his constitutional rights at the
time of his arrest, and (2) his trial counsel was ineffective
under the teachings of Strickland v. Washington, 466 U.S. 668
(1984), for failing to move to suppress his confession. (D.E. 1
("Petition").)*fn1 For the reasons stated below, the
Petition is denied.

I. BACKGROUND FACTS

A. Underlying Events

Petitioner is in the custody of the Illinois Department of
Corrections ("IDOC") following his 2001 conviction in the Circuit
Court of Cook County, Illinois, for possession of a controlled
substance within public housing with intent to deliver. (D.E. 14,
Ex. D (opinion of Illinois Court of Appeals) at 1.) Following a
bench trial, Petitioner was convicted and sentenced to 12 years
in the custody of the IDOC, less credit for time served.
(Id.)*fn2 The trial centered on events which occurred
shortly after Christmas, 1999. On December 26, 1999, Chicago
Police Officer Brian Blackman ("Blackman") and other CPD officers
responded to a call concerning Apartment 1308 at 4022 South State
Street, a Chicago Housing Authority residence sometimes referred
to as the Robert Taylor Homes. (Id., Ex. D at 2.) A woman named
Katherine Ellis answered the door and let the officers into the
apartment. (Id.)

Testimony at the bench trial differed as to what occurred
inside. (As explained later, the trial judge credited the State's
evidence and rejected the testimony of Petitioner.) According to
the State, as Officer Blackman entered the living room,
Petitioner's co-defendant at trial, Elliot Bibbie ("Bibbie"), ran
towards the rear bedroom of the apartment clutching the right
side of the jacket he was wearing. (Id.) Officer Blackman,
concerned that Bibbie might have been holding a weapon in his
jacket, followed the co-defendant into the rear room. (Id., Ex.
C at 8; see also id., Ex. D at 3.) When Officer Blackman
entered the room, he saw Bibbie and Petitioner sitting next to
each other on a bed. (Id., Ex. D at 2.) The jacket lay on the
floor. (Id.) When Officer Blackman retrieved the jacket from
the floor, a bag containing seventeen smaller bags with a crushed
leafy substance later stipulated to be cannabis and $261 fell to
the floor. (Id.) The officer arrested Bibbie and later
recovered two bags of heroin from his pants pocket. (Id.)

After Bibbie was taken into custody, Ms. Ellis, the
leaseholder, signed a consent form for the officers to search her apartment. (Id.) In a second room,
the officers found a police scanner and a black plastic bag
containing fifty-five bags of cannabis, thirty-seven bags of
cocaine, a "chunky lump" of cocaine weighing 61 grams, and $3,981
in cash. (Id., Ex. D at 2-3.) Officer Blackman, after speaking
with Ms. Ellis about who usually stayed in the room where the
scanner and black bag were found, immediately advised Petitioner
of his constitutional rights and placed him under arrest. (Id.
at 3; see also id., Ex. C at 9.) Petitioner admitted that the
bag and its contents were his. (Id., Ex. D at 3.) Petitioner
also later admitted at trial that Ms. Ellis, the woman in whose
apartment the drugs were found, was Petitioner's girlfriend.
(Id. at 4.)

Petitioner's version of what occurred differed markedly at
trial. Petitioner asserted that when the officers entered the
apartment, Petitioner and Bibbie were sitting on the bed in the
rear room watching television. (Id.) He also apparently
contended that Bibbie did not have a coat in the room. (Id.,
Ex. B at 6.) Officer Blackman and two other officers entered the
room with guns drawn, and the officers took Petitioner and Bibbie
to the living room and sat them on the couch. (Id.; see also
id., Ex. D at 4.)

Petitioner also claimed that thereafter officers took Bibbie
into the bathroom for approximately fifteen minutes and beat him
up there. (Id.; see also id., Ex. B at 6.) (Although not
material to the disposition of the case, it appears that Bibbie,
who was tried with Petitioner, did not allege any police
misconduct, let alone physical abuse or beating. (Id., Ex. C at
23).) Petitioner conceded that he was never struck. (Id., Ex. B
at 6.) Petitioner further claimed that he was never shown the
plastic bag containing the narcotics and other materials. (Id.,
Ex. D at 4.) Petitioner also denied ever making any admission to
any officer that the narcotics belonged to him. (Id., Ex. D at
3.) B. State Court Proceedings

1. The Circuit Court of Cook County, Illinois

The State charged Petitioner with four narcotics charges: two
counts of possession of a controlled substance with intent to
deliver (more than fifteen grams but less than one hundred grams
of cocaine), one count of possession of a controlled substance
within public housing with intent to deliver (between one and
fifteen grams of cocaine), and possession of between thirty and
five-hundred grams of cannabis with intent to deliver. (Id.,
Ex. B at 4.)

At the bench trial, Petitioner denied making any inculpatory
admission. (Id., Ex. D at 3.) As mentioned, Officer Blackman
testified that, after he "advised [Petitioner] of his rights,"
Petitioner admitted the illegal substances belonged to him.
(Id., Ex. B at 14 (quoting Officer Blackman's trial
testimony).) The trial judge recognized that the outcome of the
trial largely came down to a credibility assessment concerning
the testimony given by Petitioner and Officer Blackman. (Id.,
Ex. D at 5 ("The question comes down to the believability of the
witnesses.").) On that issue, the trial court found that Officer
Blackman's testimony was credible and credited it in finding
Petitioner guilty. (Id., Ex. D at 5 ("Having heard the
testimony, I find the police officer credible.").) The court
convicted Petitioner of possession of cocaine within public
housing with intent to deliver and sentenced him to twelve years
imprisonment in the IDOC. (Id.)*fn3 2. The Illinois Court of Appeals

Petitioner appealed his conviction to the Illinois Court of
Appeals. (See id., Ex. B.) On appeal, Petitioner argued, inter
alia, that his trial counsel was ineffective under the standard
set forth in Strickland v. Washington, 466 U.S. 668 (1984), for
failing to file and litigate a motion to quash Killingsworth's
statement because there was no evidence that he knowingly,
voluntarily and intelligently waived his right to remain silent."
(Id., Ex. B at 13.) Specifically, in his brief to the Illinois
Court of Appeals, Killingsworth asserted that there was no
evidence that he was properly advised of his Miranda rights
because Officer Blackman, although testifying that he advised
Petitioner of his "constitutional rights," failed to testify as
to exactly what rights he articulated to Petitioner. (E.g.,
id., Ex. B at 14 (["Officer] Blackman testified that he advised
Killingsworth of his `constitutional rights,' but did not state
what those rights were.") Petitioner further asserted that the
lack of sufficient evidence that he was properly informed of his
Miranda rights meant there was no evidence that he waived his
rights knowingly, voluntarily, and intelligently. (Id., Ex. B
at 15.) Thus, Petitioner asserted that there was "no reason for
[his] trial attorney not to file a motion to suppress his alleged
statement to the police," which, he maintains, would necessarily
have succeeded. (Id.)

The Illinois Court of Appeals denied Petitioner's appeal in
material part. The court determined that Petitioner failed to
show that his counsel's performance was deficient and that the
outcome of his trial was not prejudiced by any alleged
deficiency. (See id., Ex. D at 8-11 (citing and applying,
inter alia, Strickland v. Washington, 466 U.S. 668 (1984).) It
also found that Petitioner's counsel's decision whether to pursue
a motion to suppress in connection with the trial was a strategic
one, based on the defense strategy employed that Petitioner did
not make the admission at all. (Id., Ex. D at 11.) In this regard, the
court stated that "the defense presented in this case was that
defendant did not tell Officer Blackman that the drugs were his."
(Id.) The court reasoned that, "[g]iven that line of defense,
counsel would have had no reason to seek the suppression of
evidence or challenge Officer Blackman's testimony regarding the
Miranda warnings because those tactics would be inconsistent
with the premise that defendant did not make an inculpatory
statement in the first place." (Id.)

3. The Supreme Court of Illinois

After the appellate court upheld his conviction, Petitioner
filed a petition for leave to appeal in the Supreme Court of
Illinois. (See D.E. 14, Ex. E.) In that filing, Petitioner
presented the Strickland issue to the state Supreme Court as he
had to the appellate court. (Id., Ex. E at 3-5; see also id.,
Ex. E at 5 ("As the appellate courts are the most common forum
for claims of ineffectiveness, parties should be able to rely
upon them for accurate guidance in this area of law. Therefore
this Court should grant Killingsworth's petition for leave to
appeal.").) The Illinois Supreme Court denied Petitioner's
petition for leave to appeal. (Id., Ex. F.)

Petitioner is currently incarcerated pursuant to the judgment
of the Circuit Court of Illinois (id., Ex. D at 1), and he now
petitions this Court to grant him a writ of habeas corpus on the
ground that his counsel was ineffective for failing to pursue a
motion to suppress the inculpatory statement he allegedly made
after his arrest. (See Petition at 5.) The State filed an
answer to Killingsworth's Petition (D.E. 13), and included a copy
of the Certified Statement of Conviction in People v.
Killingsworth, No. 00CR0264701 (Ill. Cir. Ct. 2001) (Id., Ex.
A); a copy of Killingsworth's brief filed with the Illinois Court
of Appeals (Id. Exhibit B); a copy of the State's response
brief filed with the Illinois Court of Appeals (Id., Exhibit
C), a copy of the decision of the Illinois Court of Appeals rejecting Petitioner's
appeal in material part (Id., Exhibit D); a copy of the
petition for leave to appeal to the Supreme Court of Illinois
(Id., Exhibit E); and a copy of the Supreme Court's denial of
the petition for leave to appeal (Id., Exhibit F).*fn4

II. LEGAL PRINCIPLES

A. Authority to Grant a Writ of Habeas Corpus and Standard of
Review

"[A] district court shall entertain an application for a writ
of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court only on the grounds that he is in
custody in violation of the Constitution or laws or treaties of
the United States." 28 U.S.C. § 2254(a). In that regard, the
Supreme Court has recognized a "presumption that state courts
know and follow the law." Woodford v. Viscotti, 537 U.S. 19, 24
(2002). Section 2254(d) of Title 28 of the United States Code
("Section 2254(d)") "demands that state-court decisions be given
the benefit of the doubt." Id., 537 U.S. at 24. "[I]t seems
clear that Congress intended federal judges to attend with the
utmost care to state-court decisions, before concluding that
those proceedings were infected by constitutional error
sufficiently serious to warrant the issuance of the writ."
Williams v. Taylor, 529 U.S. 362, 386 (2000) (opinion of
Stevens, J.).

Thus, Section 2254(d), as amended by the Anti-Terrorism and
Effective Death Penalty Act ("AEDPA"), teaches that a federal court may only grant a
habeas petition concerning a person in state custody if one of
two conditions is satisfied. First, the writ is to be granted if
adjudication of the claim in the state courts "resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established law, as determined by the
Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
Second, a writ of habeas corpus should be granted when the state
court proceedings "resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).

Under the "contrary to" prong, a state court's decision is
subject to de novo review. Anderson v. Cowan, 227 F.3d 893,
896 (7th Cir. 2000) (citing Schaff v. Snyder, 190 F.3d 513, 522
(7th Cir. 1999)). A petition falls under Section 2254(d)'s
"contrary to" clause when "the state court applies a rule that
contradicts the governing law set forth in our cases."
Williams, 529 U.S. at 405. Courts also review habeas petitions
de novo under the "contrary to" framework when "the state court
confronts a set of facts that are materially indistinguishable
from a decision of [the Supreme] Court and nevertheless arrives
at a result different from [Supreme Court] precedent." Id. at
406; accord Huynh v. Bowen, 374 F.3d 546, 548 (7th Cir. 2004)
(quoting Williams, 529 U.S. at 406).

Killingsworth's Petition does not fall under the "contrary to"
framework established by the Supreme Court. First, he does not
appear to ground his petition under this prong. Even if he had,
however, in Williams v. Taylor, 529 U.S. 362 (2000), the
Supreme Court stated that "a run-of-the-mill state-court decision
applying the correct legal rule from our cases to the facts of a
prisoner's case would not fit comfortably within § 2254(d)(1)'s
`contrary to' clause." Id., 529 U.S. at 406. As an example of a claim that would not fit within
the "contrary to" framework, Williams specifically identified a
"state-court decision on a prisoner's ineffective-assistance
claim [that] correctly identifies Strickland [v. Washington,
466 U.S. 668 (1984)] as the controlling legal authority and,
applying that framework, rejects the prisoner's claim." Id.
That is precisely the situation presented to the Court in the
case sub judice. The Illinois Court of Appeals identified and
applied Strickland to Killingsworth's ineffective assistance
claim as set out by the Supreme Court. See D.E. 14, Ex. D at 8.
Moreover, after having conducted a thorough review, this Court
cannot find any use, or potential use, by the Illinois court of
an ineffective assistance rule contrary to that articulated by
the Supreme Court. Therefore, the instant case is not
appropriately considered under the "contrary to" framework.

Under the "unreasonable application of" clause of § 2254(d)(1),
the Court defers to "a reasonable state court decision."
Anderson, 227 F.3d at 896-97 (citing Schaff v. Snyder,
190 F.2d 513, 522 (7th Cir. 1999)). It is upon this ground that
Petitioner bases his argument. (D.E. 1 at 10 ("The Appeals Courts
[sic] reasoning is flawed in it's [sic] analysis. . . .").)
"[W]hen a state-court decision unreasonably applies the law of
[the Supreme] Court to the facts of a prisoner's case, a federal
court applying § 2254(d)(1) may conclude that the state-court
decision falls within that provision's `unreasonable application'
clause." Williams, 529 U.S. at 409. In this regard, the Supreme
Court has repeatedly instructed that an unreasonable application
of federal law is something more than simply an application that
the habeas court might not itself have reached in the first
instance or that the habeas court thinks is simply incorrect.
Thus, for example, in Woodford, the Supreme Court explained the
role a federal habeas court is to play: Under § 2254(d)'s `unreasonable application' clause,
a federal habeas court may not issue the writ simply
because that court concludes in its independent
judgment that the state-court decision applied
Strickland incorrectly. Rather, it is the habeas
applicant's burden to show that the state court
applied Strickland to the facts of his case in an
objectively unreasonable manner. An unreasonable
application of federal law is different from an
incorrect application of federal law. The Ninth
Circuit did not observe this distinction, but
ultimately substituted its own judgment for that of
the state court, in contravention of
28 U.S.C. § 2254(d).

Id., 537 U.S. at 24 (internal citations and quotation marks
omitted; emphases in Woodford); accord, e.g., Williams,
529 U.S. at 410 ("[A] federal habeas court may not issue the writ
simply because the court concludes in its independent judgment
that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable."). Accordingly, the Court
will be called upon to determine whether the Illinois appeals
court made an unreasonable determination in rejecting
Petitioner's appeal.*fn5

B. Exhaustion

A court cannot grant a writ of habeas corpus from a state-court
decision unless "the applicant has exhausted the remedies
available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A).
The exhaustion requirement means that "state prisoners must give
the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process." O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). The Supreme Court pointed
out that, whether or not the Illinois Supreme Court exercises its
discretion to grant a petition for leave to appeal, "a petition
for discretionary review in Illinois's Supreme Court is a normal, simple, and established
part of the State's appellate review process." Id. at 845. As a
result, it must be invoked. Id.; White v. Godinez,
192 F.3d 607, 608 (7th Cir. 1999) (citing O'Sullivan v. Boerckel,
526 U.S. 838 (1999)). Failure to present an issue to the Illinois
Supreme Court therefore precludes relief.

C. Procedural Default

Relatedly, Petitioner also may only present claims for relief
that are not procedurally defaulted. A claim can be procedurally
defaulted in several ways. First, if a judgment by a state court
"rests on a state law ground that is independent of the federal
question and adequate to support the judgment," then the Court
cannot review a question of federal law. Coleman v. Thompson,
501 U.S. 722, 729 (1991). This default bar applies even if the
state law ground is procedural rather than substantive. See id.
The underlying reason for this procedural default bar is
"grounded in concerns of comity and federalism." Id. at 730.
Habeas review is only available for violations of federal law. If
this procedural default bar were not in place, "habeas would
offer state prisoners whose custody was supported by independent
and adequate state grounds an end run around the limits of [a
federal court's] jurisdiction and a means to undermine the
State's interest in enforcing its laws." Id. at 730-31.

Second, a claim is procedurally defaulted if it was not
presented for a full round of review in Illinois's appellate
system. This can occur when a petitioner has failed to present in
a timely manner claim(s) in a round of appellate review. See
O'Sullivan, 526 U.S. at 848; see also Hayes v. Battaglia,
403 F.3d 935, 937 (7th Cir. 2005). A failure to timely present a
claim in a round of appellate review can occur when it was not
presented to any state court, e.g. Johnson v. Sternes, No. 03
C 5110, 2004 WL 527117, at *4 (N.D. Ill. March 10, 2004), or when
a claim was presented to the Illinois Court of Appeals but not to the Supreme
Court of Illinois. See, e.g., Rittenhouse v. Battles,
263 F.3d 689, 697 (7th Cir. 2001) ("[T]his claim has been procedurally
defaulted because [Petitioner] did not include it in his petition
for leave to appeal to the Illinois Supreme Court.").

III. DISCUSSION

A. Summary of Petitioner's Claims

The arguments in Petitioner's filing are not always pellucid.
However, the Court has attempted to discern the arguments as
thoroughly and accurately as possible. To that end, it appears
that Petitioner presents two principal issues in the Petition (at
least reading it charitably). First, Petitioner asserts that his
Fifth Amendment right to avoid self-incrimination was violated
when he was taken into custody and "Officer Blackman failed to
fully advise [him] of his rights under Miranda . . . prior to
obtaining a statement from him during a custodial
interrogation. . . ." (Petition at 8.) Next, and relatedly,
Petitioner maintains that his trial counsel was ineffective under
Strickland v. Washington, 466 U.S. 668 (1984), "for failing to
follow through with his own trial strategy to schedule a hearing
on his Motion to suppress the [statement to Officer Blackman],
where such would have been granted and the outcome [of the trial]
would therefore have been different." (Id.)

B. Miranda Claim

At first glance, it is unclear whether Killingsworth asserts
his Miranda claim as an independent ground for habeas relief.
He states that Officer "Blackman failed to fully advise the
defendant of his rights under Miranda." (Id. at 8.)
Petitioner previously pointed out this issue in the Illinois
Court of Appeals in support of his Strickland claim, by
pointing out that Officer Blackman never testified as to the specific substance of the
rights he articulated to Petitioner. (D.E. 14, Ex. B at 14.)
Petitioner identifies the same issue within the Petition.
(Petition at 10.)

It appears from the Petition that Petitioner intended to raise
the Miranda issue as a first step in his syllogism to attempt
to show that he received ineffective counsel and therefore should
be granted habeas relief. However, in an abundance of caution,
the Court notes that if Petitioner attempted to raise a
free-standing Miranda claim as an independent ground for habeas
relief, it would fail.

Petitioner's Miranda claim would be procedurally defaulted as
an independent claim because it was not presented to the state
courts in a full round of appellate review. Petitioner did not
raise the issue as an independent claim in the Illinois Court of
Appeals but rather raised it as part of the Strickland claim.
See D.E. 14, Ex. B at 13 (Petitioner claiming on appeal that,
"[i]n this case, the record shows that trial counsel was
ineffective for failing to file and litigate a motion to quash
Killingsworth's statement because there was no evidence that he
knowingly, voluntarily, and intelligently waived his right to
remain silent"); id., Ex. B at 18 (Petitioner claiming that,
"[t]rial counsel was ineffective for failing to file a motion to
suppress" and contending that such a motion would have been
granted for lack of evidence that Petitioner was fully advised of
his Miranda rights). At no point did Petitioner treat the
Miranda issue as an independent justification for overturning
his conviction. As the Seventh Circuit explained, the emphasis
when considering whether an argument is procedurally defaulted is
on the actual claim, not just the facts that may have given rise
to or might give notice of the claim. This is because the purpose
of raising the claim is to provide to the state courts "`an
opportunity to correct a constitutional violation.'" Momient-El
v. DeTella, 118 F.3d 535, 541 (7th Cir. 1997) (quoting Duckworth v. Serrano, 454 U.S. 1, 4 (1981)). In other words,
the claim itself upon which Petitioner seeks relief in federal
court must have been presented in materially the same form to the
state courts. See Perruquet v. Briley, 390 F.3d 505, 514 (7th
Cir. 2004) ("Thus, when the habeas petitioner has failed to
fairly present to the state courts the claim on which he seeks
relief in federal court . . . the petitioner has procedurally
defaulted that claim.") (citations omitted); Momient-El,
118 F.3d at 541. Moreover, in Killingsworth's petition for leave to
appeal to the Illinois Supreme Court, it is even clearer that he
raised a Strickland claim and not a stand-alone Miranda
claim. See D.E. 14, Ex. E at 3 ("Erik Killingsworth was denied
the effective assistance of counsel because his attorney failed
to file a motion to suppress statements."); id., Ex. E at 5
(suggesting that Illinois Supreme Court review was appropriate in
order to provide clarity concerning lower court evaluation of
Strickland claims). Failure to present a claim to the Illinois
Supreme Court is a procedural default that precludes federal
habeas relief. See, e.g., Rittenhouse, 263 F.3d at 697.

Additionally, and independently, as discussed below, the facts
of this case demonstrate that the state courts' conclusions
concerning Petitioner's receipt of Miranda warnings and his
waiver of them were neither contrary to established law nor the
result of an unreasonable application of law to the facts.
Therefore, even if the merits were properly before this Court,
Petitioner would not be entitled to relief in any event.

C. Ineffective Assistance of Counsel Claims

1. Strickland Standard

The heart of the Petition, and an issue that was fairly
presented to the Illinois courts, is Petitioner's Strickland
claim. In Strickland, the Supreme Court established the
framework under which claims of ineffective assistance of counsel are analyzed:

First, the defendant must show that counsel's
performance was deficient. This requires showing that
the counsel made errors so serious that counsel was
not functioning as the `counsel' guaranteed by the
Sixth Amendment. Second, the defendant must show that
the deficient performance prejudiced the defense.
This requires showing that counsel's errors were so
serious as to deprive the defendant of a . . . a
trial whose result is reliable. Unless a defendant
makes both showings, it cannot be said that the
conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.

Id., 466 U.S. at 687.

To satisfy the first prong, Petitioner would need to show that
defense "`counsel's representation fell below an objective
standard of reasonableness.'" Gallo-Vasquez v. United States,
402 F.3d 793, 798 (7th Cir. 2005) (quoting Strickland,
466 U.S. at 688)). The Seventh Circuit teaches that when considering the
effectiveness of an attorney's performance, a district court must
"indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance." Id. A
defendant "must direct [the Court] to the specific acts or
omissions which form the basis of his claim. The court must then
determine whether, in light of all the circumstances, the alleged
acts or omissions were outside the wide range of professionally
competent assistance." Fountain v. United States, 211 F.3d 429,
434 (7th Cir. 2000) (internal quotation marks and citation
omitted). Courts are to "indulge a strong presumption" of
competence such that "the defendant must overcome the presumption
that, under the circumstances, the challenged action might be
considered sound trial strategy." Strickland, 466 U.S. at 689
(internal quotation marks and citation omitted). A court should
not simply second-guess a defense counsel's assistance after a
conviction or adverse sentence has occurred, because the benefit
of hindsight is likely to distort the complexity of the
challenges presented and the reasonableness of a counsel's decision on a
real-time basis. See id. ("A fair assessment of attorney
performance requires that every effort by made to eliminate the
distorting effects of hindsight. . . . Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance . . .").
Most criminal cases result in convictions; that does not mean
that most defense counsel are acting in a constitutionally
deficient or unreasonable manner.

For purposes of the second prong, a petitioner must demonstrate
prejudice by some "`reasonable probability.'" Gallo-Vasquez,
402 F.3d at 798 (quoting Strickland, 466 U.S. at 694). Put
differently, the Petitioner must demonstrate "`a probability [of
prejudice] sufficient to undermine confidence in the outcome'" of
the case. Id. (quoting Strickland, 466 U.S. at 694). This
standard does not require the petitioner to convince the court
that his attorney's ineffectiveness more likely than not altered
the outcome in the case. Strickland, 466 U.S. at 693.

The Court proceeds, as did the Illinois Court of Appeals, to
analyze Petitioner's claim under the teachings of Strickland.

2. Prong One: Deficiency

Petitioner's theory  that his counsel was ineffective for
failing to pursue a motion to suppress because it was an
essential part of a cohesive trial strategy  fails under
Strickland because Petitioner cannot show that his counsel's
performance was deficient. Reading the Petition charitably,
Petitioner offers two theories concerning deficiency. Neither is
persuasive.

a. First Theory on Deficiency Prong of Strickland

Under one theory, Petitioner asserts that his counsel was
deficient for abandoning the overarching goal of his defense
strategy: what he terms the "suppression" of inculpatory statements made by Petitioner. (See Petition at 11
("[C]ounsel's trial strategy, that defendant did not make an
inculpatory statement . . . is merely a continuation of counsels
[sic] objective strategy of suppressing the Statement.").)
Petitioner makes this claim without reference to any authority
for support, and his assertion seems incorrect. A strategy to
deny a statement was ever made at all, one the one hand, and a
strategy to suppress a statement, on the other, strike the Court
as being two separate and distinct strategies, at least within
the setting of Petitioner's case here.

Nonetheless, Petitioner proposes that the Illinois Court of
Appeals was "flawed in it's [sic] analysis regarding the
distinction between ineffective assistance of counsel and
counsels [sic] trial strategy," (Petition at 10), when it found
that the decision not to pursue a motion to suppress was not
deficient. D.E. 14, Ex. D at 10-11 (rejecting Strickland claim
and noting that moving to suppress would have been "inconsistent
with the premise that defendant did not make an inculpatory
statement in the first place").

Several problems attend to this argument. First, there is a
"strong presumption" of competence by defense counsel and
Petitioner must "overcome the presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy." Strickland, 466 U.S. at 689 (internal
quotation marks and citation omitted). In this regard, the
decision whether to file a motion to suppress or not is usually a
strategic call that will be given substantial deference against
second-guessing. See, e.g., Wilson v. Schomig,
234 F. Supp. 2d 851, 871 (C.D. Ill. 2002) ("As a general rule, trial counsel's
failure to file a motion [to suppress statements] does not
establish incompetent representation, especially when that motion
would be futile. Whether or not to file a motion is a matter of
trial strategy which will be accorded great deference.") (internal quotation marks and citation omitted). "There are
countless ways to provide effective assistance in any given case
[and] . . . the best criminal defense attorneys would not defend
a particular client in the same way." Strickland,
466 U.S. at 689. While it certainly would have been possible for
Petitioner's counsel to deny an inculpatory statement was ever
made and, at the same time, move to suppress the never-made
inculpatory statement, it is not unreasonable that counsel would
find that pursuing two inconsistent strategies would undermine
his client's case in the eyes of the fact-finder. Petitioner's
strategy at trial was to deny that he ever made the statement 
evidence of which only came from the arresting police officer's
testimony. (D.E. 14, Ex. D at 11.) Moreover, this defense
approach was combined with an argument  not uncommon in the
criminal defense arena, particularly in the setting of a bench
trial  that Petitioner never would have admitted to ownership of
the narcotics because at the time of the events Petitioner had
been paroled (after armed robbery and kidnapping convictions) and
he would not have jeopardized his parole status. See id., Ex. D
at 3 ("Defendant testified that he did not tell Officer Blackman
that the drugs were his, adding that such an admission would have
resulted in a violation of his parole."). Reasonable defense
tactics are not subject to second-guessing simply because they
did not succeed. See Strickland, 466 U.S. at 690. Vigorous
representation of a criminal defendant often entails difficult
choices that competent (indeed, first-rate) defense attorneys
might make differently. See id. Strickland specifically
counseled against the sort of second-guessing Petitioner would
propose, by which defense counsel would be encouraged to employ
"every possible argument" defenses, regardless of whether those
defenses would be less effective (as they usually are), so as to
avoid a subsequent accusation that the defense attorney left any
argument untried. See id. Correspondingly, Petitioner's assertion that the Illinois
appellate court was "flawed" in its analysis does nothing to
further his burden of overcoming the strong presumption that his
counsel's decision not to pursue the motion constituted
reasonable and adequate representation. See id. at 689.
Petitioner proposed in both of his state court appellate briefs
that there was no reason for his counsel not to pursue a motion
to suppress, and he presents similar arguments in his petition to
this Court. (See Petition at 11 ("no trial strategy . . . can
justify counsel's failure").) However, as explained by the
Illinois Court of Appeals, it is hardly unreasonable to conclude
that moving to suppress a statement for purportedly deficient
Miranda warnings (as explained below, that argument is a weak
one anyhow) does not rest comfortably with a defense, favorably
framed as a one-on-one credibility fight, in which the defendant
will testify that he never made and never would have made the
statements at issue.*fn6

b. Second Theory on Deficiency Prong of Strickland

Reading the Petition charitably, Petitioner also urges that his
counsel was deficient for abandoning the "stronger and most
likely successful" position (i.e., the motion to suppress) in
favor of "the weaker and less likely to succeed" position. (See
id. at 12; see also id. at 11 ("meaningful adversarial testing
could only focus on a strategy which challenges the lawfulness
and admissibility of the alleged confession") (emphasis added).)
The Illinois Court of Appeals disagreed with Petitioner when he raised this argument,
suggesting that defense counsel could elect not to pursue the
motion to suppress to further the reasonable goal of avoiding the
presentation of two inconsistent trial strategies. (D.E. 14, Ex.
D at 11.) The Court agrees with the Illinois Court of Appeals; as
with Petitioner's first deficiency theory, there is nothing
constitutionally defective in foregoing the simultaneous
employment of two defenses that, at a minimum, are in substantial
tension with each other. Therefore, Petitioner's second argument
is insufficient to meet the deficiency prong required by
Strickland.

Before proceeding, it bears emphasis that defense counsel's
strategy was a reasonable one, even if it ultimately did not
result in an acquittal. Even without the filing of a defense
motion to suppress based on the supposedly defective Miranda
warnings, Officer Blackman at trial testified that he advised
Petitioner of his "constitutional rights" before Petitioner made
the admissions about the drugs. (D.E. 14, Ex. B at 14; see also
id., Ex. D at 9 (quoting Officer Blackman's testimony that,
"`Erik Killingsworth was placed in custody and advised of his
rights.'").) Petitioner argued on appeal that while Officer
"Blackman testified that he advised Killingsworth of his
`constitutional rights,'" he "did not state what those rights
were." (Id., Ex. B at 14.)

The contention that a defense lawyer is guilty of
constitutionally defective representation based on failing to
file a motion to suppress under circumstances where the arresting
officer spontaneously related in any event that the defendant was
advised of his "rights" or his "constitutional rights" is an
exceptionally weak argument. The various linguistic phrases at
issue  i.e., advising someone of their rights, advising
someone of their constitutional rights, or advising someone of
their Miranda right  at least in the context of an arrest are
functionally equivalent and interchangeable in contemporary speech and legal
jargon. See, e.g., Conner v. McBride, 375 F.3d 643, 652 (7th
Cir. 2004) ("Conner had been apprised of his constitutional
rights (i.e., read his Miranda rights) while incarcerated in
Texas and again after his arrival in Indiana."). The idea that
Officer Blackman was referring to something other than Miranda
rights when he testified that he advised Petitioner of his
"rights" (D.E. 14, Ex. D at 9) or "constitutional rights" (id.,
Ex. B at 14) at the time of Petitioner's arrest is not a
contention that comports with common sense. Notwithstanding
Petitioner's claim that filing a motion to suppress the
(supposedly non-existent) statement was a clearly superior
strategy, it is a strategy that would fail even on the record
assembled in the absence of the filing of a suppression motion.

Relatedly, Petitioner appears to claim that the
motion-to-suppress strategy was superior (so superior, in fact,
that the Illinois Court of Appeals was unreasonable in failing to
find that his defense lawyer was constitutionally inadequate for
failing to adopt it) because the State could not have shown that
Petitioner's waiver of his Miranda rights was voluntary,
knowing and intelligent. (Petition at 10-11.) This position is
flawed for several reasons.

First, Officer Blackman testified that he advised Petitioner of
his rights before Petitioner answered a straightforward question
about ownership of the drugs. (Petitioner, of course, denied that
any statement was ever made.) "[A]n explicit statement of waiver
[either written or oral] is not invariably necessary to support a
finding that the defendant waived the right to remain silent or
the right to counsel," since the facts of the particular case
determine whether waiver can be inferred from the actions and
words of the person interrogated. North Carolina v. Butler,
441 U.S. 369, 373, 375-76 (1979); see also Stawicki v. Israel,
778 F.2d 380, 383 (7th Cir. 1985) ("[O]nce a suspect is advised of
his rights and given an opportunity to exercise them, the individual may knowingly and intelligently waive these rights and
agree to answer questions or make a statement. . . . An express
waiver of a suspect's Miranda rights is not indispensable,
however, to a finding of waiver.").*fn7 It is difficult to
see how defense counsel can fairly be second-guessed for failing
to adopt a strategy that would litigate whether Miranda rights
were knowingly and intelligently waived prior to, in the
defense's view, the non-making of an admission. Moreover, if the
Petitioner was advised of his constitutional rights, as Officer
Blackman testified, then Petitioner would have had a difficult
time ultimately prevailing on any knowing waiver dispute. There
is no suggestion that Petitioner is mentally impaired (his
filing, in fact, suggests otherwise), or that he was intoxicated
or high, nor is there any suggestion that he was threatened or
coerced. He was not a juvenile. Petitioner even now does not
contend that he did not and does not understand his Miranda
rights. Under such circumstances, it is difficult to see how
Petitioner, a seasoned veteran of the criminal justice system who
was on parole at the time following an extended prison term for
kidnapping and armed robbery, could have ultimately won a
non-waiver fight about his (assertedly non-existent) admissions.
See generally, e.g., Smith v. Mullin, 379 F.3d 919, 934 (10th
Cir. 2004) (rejecting knowing and voluntary challenge and stating
that "[s]ignificantly, Mr. Smith had prior experience with the
criminal justice system. In 1986, he retained counsel to defend
him on an assault charge, eventually pled guilty, and served time
in prison. The concepts encompassed by Miranda were not foreign
to him."); United States v. Anderson, 924 F. Supp. 286, 290
(D.D.C. 1996) ("Additionally, the defendant's prior experience
with the criminal justice system suggests his awareness of his
Miranda rights, as well as the effect of a waiver.") (citation omitted).

Accordingly, it was sensible for Petitioner's counsel to adopt
an approach whereby  and consistent with Petitioner's testimony
 the defense was a denial that any admission was made at all. At
the least, it is clear that the Illinois court's conclusion that
Petitioner's counsel was not constitutionally inadequate was not
an unreasonable application of the law and therefore cannot
ground federal habeas relief.

3. Prong Two: Prejudice

Even if Petitioner succeeded in either of his arguments under
the performance prong of Strickland  which he did not  the
Court must determine whether Petitioner has adequately
demonstrated that the state appellate court's application of the
second prong of the Strickland test was unreasonable. See
Harding v. Stearnes, 380 F.3d 1034, 1045 (7th Cir. 2004).
Petitioner relies primarily on his conclusory allegation that
"[c]learly, the State would not have been able to demonstrate as
required that the defendants [sic] waiver was voluntary [sic],
knowingly, and intelligently done" if his counsel would have
sought a motion to suppress. (Petition at 12.) After reviewing
Petitioner's argument against the Strickland prejudice
standard, the Court respectfully rejects Petitioner's position
and finds that he has failed to satisfy his burden.

First, Petitioner appears to claim that the record is silent as
to whether an inculpatory statement ever even occurred. (See
Petition at 11 ("[T]he record in it of itself [sic] is silent,
and the State has failed to demonstrate that the Statement was
infact [sic] made.").) This argument (which perhaps is a fragment
from a weak sufficiency of the evidence challenge that was
rejected by the Illinois Court of Appeals and abandoned in the
petition for leave to appeal (e.g., D.E. 14, Ex. D. at 6)) is
baseless. Even Petitioner, in his brief to the Illinois Court of
Appeals, recognized that Officer Blackman testified that Petitioner admitted that the
black plastic bag containing the drugs was his. (See id., Ex. B
at 14.) At trial, of course, Petitioner attempted to counter this
testimony with his own, testifying that he never admitted to
owning the drugs. (See id., Ex. B at 15.) The appellate court
accurately identified the result of this strategy: the witnesses'
respective credibility was at issue, so the factfinder had to
decide whether to believe Officer Blackman's version or
Petitioner's version of the events. (See id., Ex. D at 7.) The
factfinder concluded that the officer's testimony was credible
and further found Petitioner guilty beyond a reasonable doubt.
(See id., Ex. D. at 7-8.) Petitioner certainly has offered
nothing that would justify this Court to set aside the Illinois
Court of Appeals's decision to respect the factfinding and
credibility determination of the state trial court. Moreover,
Petitioner makes no assertions, and he certainly does not provide
any support, to indicate that a motion to suppress would have
altered the trial judge's decision to find Officer Blackman
credible at the trial.

Petitioner also argues that even if he did make an inculpatory
statement while in Officer Blackman's custody, a motion to
suppress the statement would have succeeded because "the State
has produced no evidence that he was fully advised as to all his
rights under Miranda, and as a result could not have therefore,
voluntarily, knowingly, and intelligently waived such Miranda
rights." (Petition at 11.) In his filings with the state,
Petitioner relied on People v. Morgan, 370 N.E.2d 1063, 1067
(Ill. 1977), for the proposition that a state witness must
enunciate the Miranda warnings that were provided when
testifying that defendant was advised of these warnings. (D.E.
14, Ex. B at 15.) The Illinois Court of Appeals agreed with the
State that Morgan was distinguishable from Petitioner's case
because Morgan did not state the circumstances under which the
Miranda warnings were given. (Id., Ex. D at 12.) Moreover, under the facts of Petitioner's case, testimony by the arresting
officer that he advised Petitioner of his "`constitutional
rights'" (id., Ex. B at 14 (Petitioner's brief quoting
officer's testimony)) is sufficient basis to support the
commonsense conclusion that the Illinois courts did not misapply
settled Strickland principles in concluding that Petitioner had
failed to discharge his burden of showing a reasonable
probability of a different result. See, e.g., Gallo-Vasquez,
402 F.3d at 798 (quoting Strickland, 466 U.S. at 694). In
addition, as previously discussed, Petitioner offers no
reasonable basis to suggest that if his counsel had pursued the
motion-to-suppress strategy  notwithstanding that it was at
least in material tension with the strategy that Petitioner never
made the statement at all  that the circumstances surrounding
the admission suggested any lack of understanding or
involuntariness. Even now Petitioner does not suggest that he is
not fully aware of what the Miranda rights entail, and he never
has suggested that he was forced to speak in making a statement
that he denied under oath making at all. Under such
circumstances, this Court cannot fairly conclude that the
Illinois courts unreasonably applied Strickland so as to grant
federal habeas relief.*fn8 IV. CONCLUSION

For the aforementioned reasons, federal habeas relief is not
warranted. The Petition is denied.

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